Tuesday, December 18, 2007

Judge Orders Hearing On Destroyed CIA Tapes

By Cernig

U.S. District Court Judge Henry Kennedy, who in 2005 had ordered the government to preserve information on prisoner mistreatment at the U.S. naval base at Guantanamo Bay, Cuba, scheduled a hearing into whether the CIA violated a court order by destroying videotapes of the harsh interrogations of two terrorism suspects.

In June 2005, Kennedy ordered the administration to safeguard ``all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.''

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri. The Justice Department argued that the videos weren't covered by the order because the two men were being held in secret CIA prisons overseas, not at the Guantanamo Bay prison.

David Remes, a lawyer who represents Yemeni detainees at Guantanamo Bay, asked for the court hearing. He said the government was obligated to keep the tapes and he wants to be sure other evidence is not being destroyed.

``We want more than just the government's assurances. The government has given these assurances in the past and they've proven unreliable,'' Remes said. ``The recent revelation of the CIA tape destruction indicates that the government cannot be trusted to preserve evidence.''

Kennedy did not say why he was ordering the hearing or what he planned to ask. Even if the judge accepts the argument that government did not violate his order, he still could raise questions about obstruction or spoliation, a legal term for the destruction of evidence in ``pending or reasonably foreseeable litigation.''

The Justice Department did not immediately comment. Its lawyers are working with the CIA to investigate the destruction of the tapes and had urged Kennedy to give them time to investigate.

Remes urged Kennedy not to comply.

``Plainly the government wants only foxes guarding this henhouse,'' Remes wrote in court documents this week.

The Bush administration has taken a similar strategy in its dealings with Congress on the issue. Last week, the Justice Department urged Congress to hold off on questioning witnesses and demanding documents because that evidence is part of the joint CIA-Justice Department investigation.

Attorney General Michael Mukasey also refused to give Congress details of the government's investigation into the matter Friday, saying doing so could raise questions about whether the inquiry was vulnerable to political pressure.

While only a handful of Senators seem willing to risk the slings and arrows of outraged Surveillance-State Republicans to defend the rule of law, thankfully the third branch of government appears to have more backbone. Yesterday, Judge Lamberth ruled that Secret Service logs are public property, subject to freedom of information requests, which cannot be destroyed without permission from the National Archives. The White House had ordered logs destroyed, probably to conceal visits by convicted Republican corruption merchant Jack Abramoff.

But the question of the destroyed CIA interrogation tapes is further complicated by the FBI's belief that what one of the subjects of their "enhanced interrogations", Abu Zubaida, had to tell under their tender ministrations was of highly dubious quality.

Retired FBI agent Daniel Coleman, who led an examination of documents after Abu Zubaida's capture in early 2002 and worked on the case, said the CIA's harsh tactics cast doubt on the credibility of Abu Zubaida's information.

"I don't have confidence in anything he says, because once you go down that road, everything you say is tainted," Coleman said, referring to the harsh measures. "He was talking before they did that to him, but they didn't believe him. The problem is they didn't realize he didn't know all that much."

One FBI agent reportedly almost tried to arrest Zubaida's torturers. Oh, that he had. The destruction of the CIA's tapes smells highly of a cover-up of what the interrogators and their commanders knew were criminal acts.